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Monday, December 24, 2007

Moshe Rabbeinu was attacked by a Malach on his way back to Egypt, and Chazal tell us that this was a punishment for postponing the Bris Milah of his son, Eliezer. Making a bris while traveling would have endangered the child's life, and Moshe decided that the Mitzvah of Milah is countermanded by the need to protect the child's life. (When he reached Egypt, he spent time settling in to the inn, and apparently he should have not done so-- he should have immediately made the Bris, and so the Malach attacked him.) The Mizrachi here asks, what was Moshe Rabbeinu's justification for the delay as he travelled to Egypt in the first place? Although it is true that we learn from the passuk in the Torah "vachai bahem" that piku’ach nefesh is docheh mitzvos, but that only became the halacha after the Torah was given at Har Sinai. Before Matan Torah, the mitzva of milah was mandatory, a chiyuv gamur, from the time of Avraham Avinu, and the mitzvah of vachai bahem was as yet only voluntary, as were the vast majority of the mitzvos prior to Mattan Torah. It was not a chiyuv gamur until mattan Torah! So how could the then-voluntary mitzvah of vachai bahem be docheh the then-mandatory mitzvah of milah?

He answers that Moshe Rabbeinu knew from his own seichel that oneis nefashos is docheh, because it’s better to do one aveira now that will enable kiyum of many mitzvos later (an answer which conflates Shmuel's teretz with the other teretz in the Gemora in Yoma 85b.)

The Gur Aryeh there says he doesn’t know what the Mizrachi is talking about. Vachai bahem is not a din of dechiyah like asei docheh lo sa’aseh. It is a statement of fact that the Torah makes– life transcends mitzvos, and the protection of life is superior to the fulfillment of mitzvos. If life is superior to full-fledged mitzvos that were given on Har Sinai, then kal vachomer life supercedes mitzvos which preceded Matan Torah, including the mitzvah of Milah.

The Taz in his Yad Dovid answers that of course oneis is docheh even without the passuk, because the mitzvos were not given to shorten our lives, but rather for darkei no’am. The chidush of the passuk is that a person who chooses to die rather than transgress the aveira is over on bittul asei of vechai bahem.

So the Mizrachi’s basic assumption was that you need vachai bahem for dechiyah, and therefore Jews before mattan Torah, or goyim bizman hazeh, might not have the petur of dechiya because of oneis. You might wonder, how can it possibly be that there is a aspect of halacha that is more strict for a Ben Noach than it is for a Yisrael. This is not a question, because we find that according to some rishonim, a Ben Noach is chayav for Shogeig-- Rashi Makos 9a and Chinuch #26. Of course, there are those that argue on this-- Lechem Mishneh 10 Melachim 1.

In any case, as far as whether a Ben Noach has a petur for onsim: See Rambam 5 Yesodei Hatorah 1 and 10 Melochim 2, where he says that Bnei Noach absolutely do have a petur of oneis that allows them to be over their aveiros. We don’t need a mitzvah of vachai to patter. In fact, he says that goyim even have a greater petur onsim that Jews do-- for them, the petur dechiya applies to avodah zorah, since they have no mitzvoh of kiddush Hashem.

See the Gilyonos Chazon Ish on Reb Chaim on the Rambam in Rotzei’ach 1:9 d’h veharei; Reb Chaim seems to assume that goyim have no petur dechiya; the Chazon Ish brings the Rambam in Melochim to contradict that assumption.

See R Akiva Eiger in hilchos eiver min hachai who brings a tshuva that klers whether you’re allowed to hand eiver min hachai to a goy who needs it to save his life, because you have a problem of lifnei iver; this teshuva implies that a goy has no hetter of oneis, again contrary to the Rambam.

But the Minchas Chinuch 295, in the first piece and onwards, brings a Hafla’ah with which you can answer both problems– why did Reb Akiva Eiger ignore the Rambam, and why did Reb Chaim ignore the Rambam. The answer, with the Hafla’ah, is that while they have the petur onus when another person threatens them, they don’t necessarily have the petur onus when they choose to be over because they are sick or some other kind of oneis. In the first instance, it is viewed as the other person's act; in the second, it is your act, albeit under duress. See also the first Proshas Drochim in Shemos.